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Dane County Circuit Judge Richard Niess, pictured in a file photo from March 2018, on Friday ordered the state Department of Public Instruction to release records requested by a conservative law firm or to appear before him in court on Feb. 26.

Dane County judge says DPI must 'immediately' release records to conservative law firm

Dane County Circuit Judge Richard Niess, pictured in a file photo from March 2018, on Friday ordered the state Department of Public Instruction to release records requested by a conservative law firm or to appear before him in court on Feb. 26.

A Dane County judge on Friday ordered the state Department of Public Instruction to immediately release records requested by a conservative law firm or to appear before him in court on Feb. 26 to explain why it cannot.

The Wisconsin Institute for Law & Liberty sued DPI late Thursday, arguing the agency has illegally delayed its response to an open records request related to the federal Every Student Succeeds Act (ESSA), which requires the agency to create an education accountability system. The WILL lawsuit also alleges DPI sent "illegally embargoed" ESSA reports to school districts.

A DPI spokesman said the agency is following the open records law and will continue to do so.

The records WILL has requested require redaction and staff time to prepare, said DPI spokesman Tom McCarthy in a statement, adding that the agency has fulfilled the organization's records requests "time and time again."

"Our staff are in the process of completing that work, but have other duties beyond WILL's requests. We cannot change that fact no matter how many lawsuits they file. Today's ruling and WILL's media campaign changes nothing about how we plan to respond," McCarthy said.

According to the lawsuit, WILL first requested three sets of ESSA-related records in August 2018, then sent a follow-up email the following month. A DPI employee said the request was in progress on Sept. 21, 2018.

WILL deputy counsel Thomas Kamenick followed up again on Nov. 12, and the request was partially fulfilled the following day. Portions of the request were denied for being "insufficiently specific" and "unreasonably burdensome," and WILL send a narrowed request the following month, which DPI acknowledged on Dec. 13.

The most recent update from DPI, according to the lawsuit, was on Jan. 4, to notify WILL that the request was being worked on as a "priority," but had been delayed due to the holidays and the election.

"For months, DPI has refused our request to turn over important records about ESSA. To make matters worse, they have no problem sharing these records with school district superintendents and instructing districts to keep them from the public," Kamenick said in a statement. "Their attempt to hide how they are implementing federal law without proper legal authority should give parents and taxpayers alike cause for concern."

Kamenick's comments refer to ESSA-related reports sent Tuesday from DPI to school districts throughout the state. Districts were instructed by DPI to keep the reports private until a scheduled public release date of March 5. District administrators were instructed that they could respond to media inquiries as long as they did not violate the embargo by releasing the reports.

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McCarthy said the intention of the embargo is to give school districts time to understand the information they've been given.

"The embargo is a request that districts temporarily refrain from publishing information to give all districts time to understand and process that information, allowing everyone to keep their focus on what matters most — student success," McCarthy said.

Dane County Circuit Judge Richard Niess ruled on Friday that DPI must "immediately" turn over the records or "show cause to the contrary" before the court on Feb. 26.

The initial records requests were made when Democratic Gov. Tony Evers led the agency as a Superintendent of Public Instruction. After he was sworn in as governor, he appointed one of his deputies, Carolyn Stanford Taylor, to lead the agency.

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Jessie Opoien

Jessie Opoien covers state government and politics for the Capital Times. She joined the Cap Times in 2013 and has also covered Madison life, race relations, culture and music. She has also covered education and politics for the Oshkosh Northwestern.

Jessie Opoien covers state government and politics for the Capital Times. She joined the Cap Times in 2013 and has also covered Madison life, race relations, culture and music. She has also covered education and politics for the Oshkosh Northwestern.

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